United States v. Velez

UNITED STATES OF AMERICA, Plaintiff, v. LUIS VELEZ, Defendant.

Case No. 3:19-cr-30059-MGM

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 17, 2020

MEMORANDUM AND ORDER ON THE DEFENDANT'S MOTION TO COMPEL DISCLOSURE OF WITNESS INFORMATION

(Docket No. 36)

ROBERTSON, U.S.M.J.

I. INTRODUCTION

Defendant Luis Velez is charged by indictment with one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Dkt. No. 4). Defendant has indicated that he is likely to pursue a defense of entrapment and has moved to compel the government to disclose specific information concerning a confidential informant ("CI") who provided Defendant with the firearms and ammunition that form the basis for the indictment (Dkt. No. 36). The government has opposed the motion (Dkt. No. 44). After hearing from the parties on June 25, 2020, Defendant's motion to compel is ALLOWED IN PART for the reasons that follow.

II. BACKGROUND

A. Defendant's Alleged Crime

According to Defendant's sworn affidavit (Dkt. No. 40 at 37-41), which is accepted as true for purposes of this motion, see United States v. Pesaturo, 519 F. Supp. 2d 177, 184 (D. Mass. 2007), he met the CI in 2014 while they were incarcerated at MCI-Norfolk (Dkt. No. 40 at 37 ¶ 2). Defendant states that he and the CI "became close in prison" and referred to each other as "'brothers'" (Dkt. No. 40 at 37 ¶ 3). The CI recounted the "many violent crimes" he had committed, including "threats, use of firearms, and murder" (Dkt. No. 40 at 37 ¶ 3).

After the CI was released from state prison "sometime in the summer of 2015," he lived in New Bedford, Massachusetts (Dkt. No. 40 at 37 ¶ 4). Defendant completed serving his sentence in November 2016 and moved to Springfield to live with his family (Dkt. No. 40 at 37 ¶¶ 4, 5). The CI loaned Defendant money until he started earning a salary (Dkt. No. 40 at 37-38 ¶ 6). Defendant and the CI talked by telephone "two to three times a week," communicated over social media, and occasionally socialized in New Bedford (Dkt. No. 40 at 38 ¶ 7).

Defendant claims that the CI attempted to convince him to "join him in illegal schemes and committing various crimes in New Bedford" (Dkt. No. 40 at 38 ¶ 8). On one occasion in 2017, the CI asked Defendant to come to New Bedford to pick up his guns because the police had raided his house searching for drugs (Dkt. No. 40 at 38 ¶ 9). Defendant consistently refused to participate in the unlawful activities that the CI proposed (Dkt. No. 40 at 38 ¶¶ 8, 9).

The CI called Defendant from jail after his arrest by the New Bedford police on or about May 21, 2019 (Dkt. No. 40 at 2-4, 38 ¶ 10). The CI told Defendant that "'he couldn't do any more time in,' he couldn't bear being in jail, and . . . he was 'going to try to get out any way he could'" (Dkt. No. 40 at 38 ¶ 10). The CI called Defendant frequently thereafter (Dkt. No. 40 at 38 ¶ 11). During one jail call, the CI asked Defendant to get "those toys," and referred to a "45" and "chrome" (Dkt. No. 40 at 38 ¶ 11). Defendant realized that the CI was using the code word "toys" to refer to the firearms that he had asked Defendant to retrieve from his home before his arrest (Dkt. No. 40 at 38-39 ¶ 11).

Notwithstanding the CI's continued pressure on Defendant to go to New Bedford to pick up the "'toys,'" Defendant refused because he did not want to possess guns at his home in Springfield (Dkt. No. 40 at 38-39 ¶¶ 11, 12). About a month after the CI first called Defendant from jail, he told Defendant that he was "in dire need of money for bail and wanted to sell the guns to somebody, but first he needed to get them out of New Bedford and away from his family and kids" (Dkt. No. 40 at 39 ¶ 13). The CI told Defendant that one of his "associate[s]" would deliver the firearms to Defendant in Springfield (Dkt. No. 40 at 39 ¶ 13). Although Defendant did not want to take possession of the firearms, he interpreted the CI's comment, "'You have to do me this solid,'" as an appeal to Defendant's obligation to repay the CI for his financial assistance after Defendant's release from prison and as "a threat" to the safety of Defendant and his family if he refused the CI's request (Dkt. No. 40 at 39-41 ¶¶ 13-16, 20). Within a short time after the CI told Defendant he "had to do him the solid" of storing his guns, one of the CI's associates delivered them to Defendant's garage (Dkt. No. 40 at 40 ¶ 17). Defendant understood that he would store the guns for the CI until he found a buyer (Dkt. No. 40 at 39 ¶ 15).

According to the government, while the CI was incarcerated pending trial, he offered New Bedford Police Detective Jason Gangi information concerning firearms that he had transferred to another person (Dkt. No. 44 at 1, 5). On June 26, 2019, Detective Gangi and an agent from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") interviewed the CI pursuant to a proffer agreement (Dkt. No. 44 at 2). The CI's proffer stated that, "to avoid the risk of keeping the firearms at [his] home, [he] had given three firearms, two handguns and a rifle, to . . . [D]efendant, with the understanding that . . . [D]efendant could use the firearms, but that eventually the [CI] would want them returned" (Dkt. No. 44 at 2).

During a telephone call on July 2, 2019, the CI told Defendant that a buyer would contact him about retrieving the firearms and would pay the CI for them (Dkt. No. 40 at 40 ¶ 18; Dkt. No. 44 at 2). Defendant received a text message from the CI's alleged associate a few days later indicating that he would pick up the firearms (Dkt. No. 40 at 40 ¶ 19; Dkt. No. 44 at 2). On July 5, 2019, Defendant transferred three firearms and ammunition to the CI's alleged associate, an undercover law enforcement officer, who handed Defendant some cash (Dkt. No. 4; Dkt. No. 40 at 40 ¶ 19; Dkt. No. 44 at 2-3). The transaction was audio and video recorded (Dkt. No. 44 at 3).

Defendant alleges that he only agreed to store the CI's guns at his home for a short time "out of [his] moral debt to him, [his] concern about his family, and [Defendant's] fear of what he might do to [his] family and [him] should [he] refuse to store the weapons for him" (Dkt. No. 40 at 41 ¶ 20).

B. The CI's History

Portions of the CI's history of involvement with the criminal justice system, including his May 2019 arrest by the New Bedford police and his subsequent conviction on the charges that led to his arrest, are relevant to Defendant's motion.¹ In May 2016, about a year after the CI's release from MCI-Norfolk, he was charged with committing a narcotics offense for which he received a sentence of probation in 2018 (Dkt. No. 40 at 33 [sealed]).

On May 21, 2019, the CI was arraigned in the New Bedford District Court on the following charges that stemmed from the CI's participation in a masked armed robbery and shooting of a victim in a New Bedford apartment on February 20, 2019 (Dkt. No. 40 at 2-5, 24): assault and battery causing serious bodily injury, in violation of Mass. Gen. Laws ch. 265, § 13A(b)(i) (Count 1); armed robbery with a firearm while masked, in violation of Mass. Gen. Laws ch. 265, § 17 (Count 2); discharging a firearm within 500 feet of a dwelling, in violation of Mass. Gen. Laws ch. 269, § 12E (Count 3); assault and battery by means of a firearm, in violation of Mass. Gen. Laws ch. 265, § 15E (Count 4); assault with intent to rob while armed with a firearm, in violation of Mass. Gen. Laws ch. 265, § 18(b) (Count 5); accessory before the fact, in violation of Mass. Gen. Laws ch. 274, § 2 (Count 6); and accessory after the fact, in violation of Mass. Gen. Laws ch. 274, § 4 (Count 7) (Dkt. No. 40 at 23-24).

After the probable cause hearing was continued five times, the CI pled guilty to Counts 1, 2, 4, and 5 in the New Bedford District Court on November 27, 2019 (Dkt. No. 40 at 25-27).² On Count 4, which charged assault and battery by means of a firearm, the CI received a split sentence of two and one-half years to the house of correction, with 187 days to be served and the balance suspended (Dkt. No. 40 at 28). The CI received credit for the 187 days that he was held in confinement while awaiting trial (Dkt. No. 40 at 28). On Count 5, which charged assault withintent to rob while armed with a firearm, the court imposed the same split sentence that was imposed on Count 4, to run concurrently with the Count 4 sentence (Dkt. No. 40 at 28). On Count 1, the CI pled guilty to so much of the original offense of assault and battery causing serious bodily injury as charged the lesser crime of assault and battery, in violation of Mass. Gen. Laws ch. 265, § 13A(a), and on Count 2, he pled guilty to so much of armed robbery with a firearm while masked as charged larceny from a person, in violation of Mass. Gen. Laws ch. 266, § 25(b) (Dkt. No. 40 at 28). The CI received concurrent sentences of probation on those convictions (Dkt. No. 40 at 28). Counts 3, 6 and 7 were dismissed at the prosecution's request (Dkt. No. 40 at 27).

C. Defendant's Discovery Requests and the Government's Responses

On March 4, 2020, Defendant requested discovery concerning the CI including:

8. All reports, memoranda, or other materials documenting any debriefing, discussion or conversation between agents and [the CI] regarding [Defendant];

9. All of [the CI's] communications to law enforcement or government personnel prior to, during, and subsequent to [Defendant's] arrest;

10. All reports, memoranda, or other materials regarding [the CI's] own acquisition of the firearms at issue; [and]

11. All materials documenting [the CI's] efforts and attempted efforts to have [Defendant] take possession of and then later transfer the firearms at issue[.]

(Dkt. No. 40 at 43-45).

In response to Defendant's discovery requests ## 8, 10, and so much of 11 as requested information on the CI's participation in Defendant's transfer of the firearms to the undercover officer, the government provided two ATF Reports of...